Posted on September 08, 2021
Many companies are mandating vaccination policies on the basis that employees must obey lawful and reasonable directions of their employer.
Accordingly, many employees want clarity on whether their vaccination status may impact on their employment.
There are a number of areas of law that may give rise for employees to make a claim against their employer. However any such claim will be met with defences on the basis that the employer’s policies constitute a reasonable and lawful direction.
There is an implied term in every employment contract requiring an employee to obey the lawful and reasonable directions of their employer.
Breach of an implied duty will constitute a breach of contract and depending on the nature of the breach could amount to a valid reason for dismissal. An employer’s policies can constitute a lawful and reasonable direction and a failure to comply may be regarded as a breach of the implied duty of obedience.
As an example an employer has a duty to eliminate risks to health and safety and a vaccine policy is consistent with such duty. The question of lawfulness and reasonableness will depend on factors including:
- the nature of the employee’s role;
- whether they are dealing with the public face to face; and
- the level of risk in that role in terms of health and safety.
Another area of the law which is relevant is discrimination. Vaccination policies mandating vaccinations may result in indirect discrimination. This would only be the case for people with disabilities or medical conditions as defined by the Disability Discrimination Act 1992 (Cth). Reasonable adjustment may need to be made by the employer in such circumstances. However the employer may seek to rely on the defence that it is not unlawful to discriminate against a person on the basis of their disability if the discrimination is reasonably necessary to protect public health.
Each employee’s circumstances need to be carefully considered to establish if the mandated policy is reasonable and lawful. Many employers have taken steps to offer comparative alternative roles for employees that choose not to vaccinate and where there are no other roles in the company, redundancy packages are being made to those employees to be made medically redundant.
Depending on your particular industry, there may be existing policies in place where mandatory vaccinations are already required. Examples include policies relating to vaccinating against Q fever in the meat industry and a requirement to have annual flu shots in the health services sector. Another recent example is the requirement for all residential aged care workers to be vaccinated from 17 September 2021. The reasonableness of these policies will depend on the particular industry you work in and the nature of your role.
This article is provided for informational purposes only. If you are unsure about your obligations to vaccinate or the reasonableness and lawfulness of any direction from your employer then seek legal advice.
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